Upton-on-line August 17th

Prince Charming or Prince Churlish?

The passage of the Employment Relations Bill was an unedifying affair best described by a Special Disaster Edition of From the Plains of the Serengeti (see below). But the Government’s justification of itself does deserve some comment.

Its schizophrenic relationship with business was on full display as the third reading unfolded. It couldn’t be described as a love-hate relationship. There’s no love for business in the sense that Tony Blair and Gerhard Schroder feel it as they rub shoulders with the rich and powerful (although upton-on-line is given to understand that Helen Clark launched this year’s rich list in a desperate attempt to send signals across the abyss).

Rather, it’s a shrug-hate relationship. In between the outbreaks of rank prejudice from people like Jim Anderton, there are anti-cyclonic periods of calm when people like Michael Cullen give shoulder-shrugging speeches in which they wonder wistfully why business doesn’t just accept that Labour’s running the show and start toadying in the normal way.

Take this, for example, from Cullen’s third reading speech:

“It is not a time for any sector group or any individuals to be seeking a return to the past. I say that first to the employers and their piqued organisations. If we have two and a half years of a hissy fit from the Employers’ Federation and other organisations, essentially advising their members to organise a strike on capital, to organise themselves to avoid economic growth, and to try to punish this Government for changing the industrial relations law, they will be the people fighting the class war in this country, They will be the people seeking to return to the past. They will be the people not promoting the true interests of their membership and of this nation. It is time for them to end the misleading propaganda, and to tell businesses in this country how the Employment Relations Act will actually work in practice. They should stop winding up people’s fears about things that are simply not going to happen under this Act in its operation.”

Charming isn’t it? If there’s pique in the wind, it’s traceable directly to the Minister. It is he who is in a hissy fit about not being taken seriously by people whom he considers to be his intellectual inferiors. How churlish!

We should sit back now and wait for the marketplace to produce its verdict. But upton-on-line will lay money on it that multi-employer contracts will lead to firms being taken out on strike to support strikes in other businesses whose troubles are none of their business. If that’s not back to the past what is?

And by the way: this visionary, forward-looking piece of legislation still contains the provision fiercely fought over in Parliament that allows a union official to merely allege that he has been discriminated against and in doing so trigger a presumption of guilt on the part of his employer. Guilt is presumed, innocence has to be established. And this is the legislation Michael Cullen insists carries the widespread endorsement of “sensible, sane and moderate employers”. Has anyone met these people?

Contra Preferentem Rides Again

Upton-on-line had vowed to let the Treaty slumber for a week but fascinating new material keeps coming to hand and it seems better to keep readers abreast of the debate than bury them in an accumulation of complexity when things get really exciting (which they surely will).

This week’s little jewel came quite fortuitously in Question Time on Tuesday when Mita Ririnui asked the Maori Affairs Minister, Parekura Horomia if there were any differences between the English and Maori versions of the Treaty. Horomia confirmed that there were noting that:

“The main difference is that the English version confers sovereignty on the Crown, while the Maori version is interpreted by Maori as conferring a more limited power to make laws to protect Maori interests.”

This led Nandor Tanczos to ask whether the Government recognises "the doctrine of contra preferentem under international law which says that where two versions of a treaty are in disagreement, it is the indigenous language version which takes precedent".

Parekura Horomia confirmed that “that is correct – that is what the courts do”.

Upton-on-line was eager to follow this up with the Minister which he did in Question Time on Wednesday, asking the Minister which version of Article I the Government relies on in exercising its sovereign responsibilities. The reply was, no doubt, drafted by the Attorney-General Margaret Wilson given its rather pained opening:

“This is a question of administrative and constitutional law, which should be directed to the Attorney-General. However, in case it may assist the House, my understanding is that the sovereignty of Parliament does not derive solely or directly from the Treaty of Waitangi, but from a raft of constitutional instruments and conventions.”

So the issue was side-stepped (and in a way that left room for manoeuvre on just how far the Treaty can be relied on as foundational). Further questioning was even less satisfactory since the Minister (who sits close by Wilson) had to rely on quickly whispered advice that didn’t make for fulsome answers. Upton-on-line attempted to get clarification about what limitations on Crown sovereignty the Minister had in mind when he referred to the Maori version of Article I. Nothing was forthcoming.

All of this has whetted upton-on-line’s interest in the contra preferentem rule and what it means for Treaty interpretation. The 'rule' is an interpretative device that has been favourably commented upon by the Treaty of Waitangi Tribunal which, under its statute, is required “to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the differences between them”.

The Tribunal (in its report on the Orakei case back in 1987) cited approvingly the formula laid down in Jones v Meehan, a decision of the US Supreme Court in 1899 dealing with the interpretation of a treaty between indigenous Indians and the US Government. The key passage is as follows:

“In construing any Treaty between the United States and an Indian tribe, it must always … be borne in mind that the negotiations for the Treaty are conducted, on the part of the United States, and enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the Treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all forms of legal expression, and whose only knowledge of the term in which the Treaty is framed is that imported to them by the interpreter employed by the United States; and that the Treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by Indians.”

And so, the US Supreme Court said that such treaties should be construed “in the sense which they would naturally be understood by Indians”. In the words of the Waitangi Tribunal itself (in the Orakei case) this is “an indulgent rule”.

The question is whether the Maori version of the Treaty of Waitangi should be so indulged, and in particular Article I. If the debate is over Article II (where specific Maori interests are protected) there seems to upton-on-line to be good reason to pay particular attention to the Maori version. But where something as momentous as overall sovereignty is concerned – and the vital interests of both parties are at stake – lightly preferring one version at the expense of the other is nothing if not controversial. A number of considerations come to mind.

In the first place, are we really happy (more importantly, are Maori happy) with being described (in the terms of Jones v Meehan) as 'weak and dependent' and therefore seriously vulnerable? No-one can doubt the novel nature of a written treaty from the point of view of Maori. On the other hand, there is little doubt that the British had a clear understanding that Maori were in possession of rights that could only be altered by negotiation. (The Orakei case cites the Colonial Secretary, Lord Stanley, requiring Governor Grey to “honourably and scrupulously fulfil the conditions of the Treaty” and repudiating utterly “the notion that the treaties which we have entered into with these people are to be considered as a mere blind to amuse and deceive ignorant savages.”)

The British didn’t believe they were dealing with ignorant savages. Since Marsden’s arrival in 1814, missionaries had been living among Maori, people were becoming increasingly bi-lingual to survive and Maori literacy had burgeoned throughout the 1830s. That is not to say that the Chiefs who signed were seasoned old solicitors. But they were dealing with missionaries and officials who respected their grasp of events and who needed and wanted their willing accession to the Treaty.

In the light of suggestions (not unreasonable) that the British side would have put the best light on their formula in seeking to persuade the chiefs, it is salutary to remember that pakeha views were not necessarily all the same either. Bishop Jean Baptiste Pompallier, a French national, was accused by some of sowing doubts in the minds of some chiefs. Later in 1840 he wrote that:

“It was for them (ie the chiefs) to determine what they might desire to do with their national sovereignty, whether to keep it or to transfer it to a foreign nation; they were therefore at liberty to sign or not to sign the treaty which was going to be put before them” (Pompallier to Pere Colin 14.5.1840)

Chiefs Rewa and Te Kemara claimed that Pompallier had warned them off. None of this is conclusive. But the extent to which the Crown should pull the sack cloth of contra preferentem around its shoulders must at least be debatable.

It has been suggested to upton-on-line that a better interpretative tool might be the Vienna Convention on the Law of Treaties 1969 which holds, in Article 33, that when a comparison of texts in different languages discloses a difference of meaning, “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”.

That seems, to upton-on-line, a more even-handed approach. It depends, of course, whether you regard the Treaty of Waitangi as a treaty at international law. If you do, the Vienna Treaty has more force. Those who insist that the British were negotiating with a sovereign people in 1840 must consider what this assertion means for them. Did Maori and the Crown form a “constituent compact” as US Chief Justice John Marshall said the founding states of the United States had ?

Canadian judicial comment suggests another approach. In Simon v Queen, the Canadian Supreme Court stated that:

“While it may be helpful in some instances to analogise the principles of international treaty law to Indian treaties, these principles are not determinative. An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules in international law.”

Which would tend to lead away from the Vienna Convention back in the direction of something like the contra preferentem rule.

This is all wonderful for lawyers and careers are being built around it. That’s why Margaret Wilson needs to get on the front foot and take charge. Rather than getting Parekura Horomia to regret, in answering questions, that they were not directed to her, she should have all such questions transferred to her and start providing some clear insights into the Government’s thinking.

The prepared answers with which Parekura Horomia came to the House to respond to questions from government MPs, move us no further forward. Take this, in reply to Mahara Okeroa:

“The Treaty was made to build New Zealand, not to wreck it. That was what both sides wanted as a way of living together constructively for mutual advantage. That is why the treaty is a partnership. Of course there will be conflicts of interest. There are competing rights under the treaty. These are the right of the Crown to govern versus the right of Maori to control their own affairs. That is why it is so important to maintain the idea of a partnership. As long as we are good and honest partners, there will be a way through the difficulties.”

No-one wants to wreck New Zealand. Everyone wants to live together constructively. But words like partnership smother a wide array of meanings. What is the nature of the partnership? Where are its terms? All we have are the words of the Treaty which carry the accretion of 160 years of legal and judicial dissection. Those words are in two languages and admit of different interpretations.

But I don’t see that the right of the Crown to govern should necessarily be in competition with the right of Maori to control their own affairs any more than the Crown is in competition with any New Zealander’s right to control his or her own affairs. There will only be a difference in the nature of that 'competition' if one group is claiming some co-extensive sovereignty alongside the Crown – which is exactly what some academics and activists are doing.

This is what the elected Government must apply its mind to and report to the people on. Where does it stand? And where do ordinary New Zealand citizens stand. They are, in reality, the other Treaty 'partner' – and no-one is engaging them in a way that treats them intelligently and respectfully.

It is almost as though the non-Maori citizenry, is (to use the language of Jones v Meehan) again) , “weak and dependent, …wholly unfamiliar with all the forms of legal expression” that ministers and lawyers use, and “whose only knowledge of the terms in which the treaty is framed” is through those expert interpreters whom the Government of New Zealand employs. If the Government is not careful it will find that the wider public will construe its own statements contra preferentem.

The Committee stages of the Employment Relations Bill were like a flood. Cyclone ERB generated the worst flooding any of the animals could remember. They were never in any danger - there was high ground to retreat to and the rain would eventually stop. But while the deluge lasted, they were squashed into a confined area and forced into intimate contact with animals they would normally run a mile from.

Despite the subject matter of the Bill - good faith bargaining - there were no signs of an outbreak of goodwill or bonhomie. In fact, close quarters made for some very grumpy animals. Unable to leave his office for the duration, the Chief Park Ranger was in a particularly severe mood. Animals that strayed from their designated territories were likely to be zapped and made to stand out in the rain until they were sufficiently miserable.

Several careers are in tatters, most notably those of the Government Whips. Rick Barker lost control of the valley early in the piece and was trampled in the ensuing melee. Other careers were immeasurably enhanced. Annabel Young was snapped by a wildlife photographer from the Evening Post yawning like the well-fed tigress she is.

New Zealand First's Peter Brown, flushed out of the dense shade in which he normally broods, was revealed as a dogged wildlife equivalent of a draught-horse stomping all over the vegetarian herbivores.

The latter have emerged as possibly the most damaged in the long run. True to their green credentials they put up all sorts of crazy proposals like legalising strikes on environmental grounds. On the other hand, they ended up supporting the cry for utu that led to the hearings being held under urgency (something they had previously recoiled from).

No-one was left untouched by the pandemonium. Even Parliament's translator had to be dragged out of on-the-job-retirement to decipher a rare outbreak of voting in Maori that spread like wildfire through the predators' ranks.

Being confined in close quarters had quite different effects on the metabolisms of the two sides. The predators were struck with a serious case of amending diarrhoea. The protozoa responsible for this phenomenon was particularly virulent with nearly 700 amendments fertilising the Parliamentary order paper. The herbivores, on the other hand, suffered serious verbal constipation, straining repeatedly (and usually unsuccessfully) to move "that the motion be put".

As the flood recedes, with the bill passed into law, old ways are re-asserting themselves. Michael Cullen's sense of humour has returned, Gerry Brownlee has reverted to English, and Margaret Wilson is being left to read her back copies of the Guardian Weekly in her office rather than on the floor of the House with all its tedious noise and pin-pricking stings from ACT insects.

As the animals pulled down the predator-proof fence erected by the Employment Contracts Act nine summers ago, an eager band of union stoats was already assembling in the hills above the valley waiting to slip through the opening. The strikes and stand-over tactics are but months away. There is little hope that Margaret Wilson has inoculated them against the dreaded class warfare virus that was once believed to survive only in an academic's test tube but which has, in recent months, been noticed springing up all over the industrial relations landscape.

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